Wednesday, 26 February 1997
Seanad Éireann Debate
Minister of State at the Department of Justice (Ms Burton): The main purpose of this Bill is to provide for the abolition of the distinction between felonies and misdemeanours in our criminal law. That distinction marked the original approach to the classification of offences; felonies being the graver class and misdemeanours the less grave class of offences. The distinction has been eroded over many years and in today's conditions has no real relevance. Today, for example, serious offences such as fraudulent conversion and obtaining property by false pretences are classified as misdemeanours whereas a relatively trivial offence such as stealing a bar of chocolate is a felony.
The distinction between felonies and misdemeanours also gives rise to a number of unnecessary complications and anomalies in the law. Certain statutory provisions and common law rules depend on the continuing distinction between those two classes of offences. The Bill for the most part comprises provisions that are consequential on the abolition of the distinction between felonies and misdemeanours and related matters. It provides that, in general, the law and practice for misdemeanours before the commencement of this legislation will apply to all offences. The abolition of the distinction is also a progressive step as it provides the opportunity to amend and restate the law in a modern form and, in so doing, a considerable number of older enactments can be repealed, or in some cases, simplified.
The criminal law needs to be relevant and responsive to modern day conditions. This Bill, by modernising and clarifying the law in key respects, such as in regard to powers of arrest, is a very significant advance in that regard. I remind Senators that earlier this month the House passed the Criminal Justice (Miscellaneous Provisions) Bill, 1996, which contains provisions for a more effective and efficient use of Garda time and resources and other proposals for reform of procedure in criminal cases. The Minister has introduced the Children Bill, 1996, which is before the Dáil and provides the basis for a new juvenile justice system. In addition, the Minister today published the Non-Fatal Offences against the Person Bill, 1997, which is designed to restate in modern statutory form the law relating to the main non-fatal offences against the person most of which are currently provided for in 1861 legislation. These Bills are key elements in the comprehensive programme of legislative reform the Minister has undertaken to modernise and improve important areas of criminal law.
Other legislative measures in the criminal law area which are at an advanced stage of preparation include a bail Bill which will provide for  changes in our bail laws as a consequence of the recent amendment to the Constitution; a Licensing (Drugs) Bill which will deal with the problems of drugs sold in dance halls, public houses and at unlicensed dances and a fraud offences Bill which will simplify and update our complex dishonesty laws. These steps to reform criminal law are a significant part of the Government's law and order response to today's crime situation and are a clear indication of the seriousness with which this Government is responding to the developments and trends in modern day crime.
Section 3 is the pivotal provision of the Bill. It abolishes all distinctions between felonies and misdemeanours. It provides that the law and practice in regard to offences will be that applicable to misdemeanours. In my opening remarks I explained how the distinction between felonies and misdemeanours, which was originally a distinction between serious and minor offences, has become blurred over the years. As a consequence of abolishing the distinction, the law needs to be updated and, in some cases, restated.
At present there is a power of arrest without warrant at common law in respect of felonies; no such power exists in respect of misdemeanours. As a result, it is necessary to obtain an arrest warrant in respect of a number of serious offences which are classified at present as misdemeanours, such as fraudulent conversion and obtaining property by false pretences. As it is proposed to abolish all distinctions between felonies and misdemeanours, section 2 of the Bill will put in place a new category of “arrestable offence” which will comprehend most felonies and the more serious misdemeanours. An offence that is punishable by imprisonment for a term of five years or by a more severe penalty, including an attempt to commit such an offence, will be an arrestable offence for the purposes of the Bill.
The Bill restates and clarifies the existing law relating to arrest. The fact is that practically all the present felonies come within the new arrestable offence category as nearly all of them are punishable with maximum sentences of at least five years imprisonment. The only substantive change is that the new category of “arrestable offence” extends the power of arrest without warrant to include some of the more serious misdemeanours. These are misdemeanours which at present carry a penalty of at least five years imprisonment. This change will undoubtedly make the law relating to arrest much more relevant and effective as the new powers will be related to the seriousness of the offence in question as determined by the penalty that may be imposed for the commission of that offence.
There is a clear need for an effective power of arrest without warrant where serious crimes are involved. Today it is hard to justify the retention, as part of our criminal law, of a requirement that arrest for the commission of some serious offences can be effected only on foot of a warrant while other equally serious offences do not necessitate a warrant. The Minister is satisfied  that the criterion of a penalty of at least five years imprisonment is an appropriate and proportionate indication of what constitutes a serious offence.
The definition of arrestable offence is the same category of offence referred to in section 4 of the Criminal Justice Act, 1984, in respect of which the provisions of that Act, relating to periods of detention in Garda custody, apply. The arrest provisions before the House and the provisions of the 1984 Act have a common reference point in terms of the seriousness of the offences to which both provisions relate. This represents an important step in the development of our criminal law. It is desirable that the law in relation to arrest and the law relating to Garda procedure after arrest are underpinned by a common reference point in respect of offences committed.
Section 4 is concerned with the powers of arrest which are exercisable by private citizens and gardaí. At present the powers of arrest without warrant are either contained in specific statutes, of which there are many, or conferred by the common law in respect of felonies. Statutory powers of arrest will be unaffected by the provisions of this Bill. The section contains powers that correspond to the present common law rules in respect of felonies. They are exactly the same as the powers of arrest conferred by section 19 of the Criminal Law (Jurisdiction) Act, 1976, in relation to offences in Northern Ireland and associated offences in the State and by section 12 of the Criminal Damage Act, 1991, in relation to offences of causing criminal damage.
There is a very important distinction in law between the relative positions of private citizens and gardaí in the matter of arrest. When a private citizen exercise a power of arrest it is essential that a felony can actually be proved to have occured. If no felony has in fact occurred, the private person who made the arrest will be liable to a civil action. Therefore, a private person must exercise caution when he or she decides to exercise a power of arrest. However, a garda may arrest any person whom he or she reasonably suspects of committing a felony whether or not any offence has actually taken place. The garda is immune under the law from a civil action for damages should the offence not actually have been committed.
The Government believes that it is appropriate to maintain the distinction in law between the powers of arrest of gardaí and the powers of arrest of private persons. Therefore, under the Bill, a private person who gets it wrong will quickly find himself or herself facing an action in the civil courts for defamation, wrongful imprisonment or trespass to the person. While it is appropriate that private persons should have a power of arrest, and indeed the courts have commended such persons for exercising that power in particular cases, there is a question of balance here which must be settled in the context of the constitutional right to personal liberty. It is worth emphasising that the only substantive change proposed  in the Bill is that such powers of arrest without warrant will now extend to a number of serious offences previously classified as misdemeanours. The powers of arrest of private persons are, in practice, of most relevance to store detectives or security personnel who do not, and will not have under this Bill, any additional powers at their disposal in the matter of arrest than any other private person.
Section 5 provides that a member of the Garda Síochána may execute a warrant for the arrest of a person or an order of committal without the need to have the actual warrant or order in his or her physical possession which is what the common law appears to require. There are precedents for this approach in the Criminal Justice Act, 1984, as regards arrest on a warrant for failure to surrender to bail, and in the Extradition (Amendment) Act, 1994, as regards arrest on extradition warrants, and it is now being extended to cover all arrests with warrants. It is unsatisfactory that a garda is not generally empowered to arrest a person when he or she knows that a warrant for the arrest of that person has been issued. An important safeguard is being provided in that the warrant or committal order must be shown to the arrested person as soon as practicable.
Section 6 is concerned with Garda powers to enter and search premises to effect an arrest for an arrestable offence or on foot of an order for committal. Senators will be aware that this provision received a lot of attention during the passage of the Bill through the Dáil. In particular, a number of Deputies expressed concern that a general power to enter a dwelling, such as that provided for in the section, for the purpose of effecting an arrest for an arrestable offence without a warrant would be found to be inconsistent with Article 40.5 of the Constitution which provides special protection against the forcible entry of dwellings. The Minister has considered section 6 further, in consultation with the Attorney General, and she has decided that it should be amended so that the conditions under which the gardaí can enter a dwelling to make an arrest for an arrestable offence without a warrant should be spelled out. I understand that an amendment to that effect will be tabled on Committee Stage in this House.
The current law varies as to how persons involved in a crime who do not actually carry out the deed are treated depending on whether the offence in question is a felony or a misdemeanour. As regards felonies, distinctions are made between a principal in the first degree, that is the person who does the act in question, a principal in the second degree, that is a person who aids or abets the commission of the offence by the principal in the first degree and an accessory before the fact, that is a person who counsels or procures the principal in the first degree to commit the offence. For misdemeanours there are no such distinctions and all persons involved are  treated alike as the principal offender. There are no good reasons for maintaining the distinctions in regard to felonies and, accordingly, section 7 provides that the misdemeanour rule will now apply to all indictable offences so that all those who aid or abet, counsel or procure the commission of such an offence will be treated as principal offenders.
The section also creates a new offence of impeding the apprehension or prosecution of a person who has committed an arrestable offence. This replaces the common law offence of being an accessory after the fact to a felony. A scale of penalties for this new offence, which is graduated according to the seriousness of the principal offence, is set out in the section. For example, where person A has committed the arrestable offence of murder, person B who commits the offence of impeding the apprehension or prosecution of person A, will be liable on conviction on indictment to imprisonment for a term not exceeding ten years.
Section 8 creates a new offence of concealing an arrestable offence. This also arises from the abolition of the distinction between felonies and misdemeanours. As a result of abolishing felonies, the old offence of misprision of felony will disappear. The new offence will, in effect, be one of accepting a bribe not to disclose relevant information to assist the prosecution or conviction of an offender. The new offence of concealing is similar to the existing offence of compounding a felony with one important difference. The old offence of compounding a felony also covered any consideration accepted for not disclosing information, including consideration consisting of the restitution of or compensation for stolen goods. Under the section, it will no longer be an offence not to disclose information about an arrestable offence where the loss is made good or compensation is made for it.
The current rules about alternative verdicts, that is where a person may be found guilty of a less serious offence than that on which he or she has been arraigned, differ as between felonies and misdemeanours. At present, on a charge of felony the accused may be convicted of a less serious felony of which the ingredients are included in the felony charged. While the same rule applies to misdemeanours, a person charged with a felony cannot be convicted of a misdemeanour except under statute. As a consequence, therefore, of the abolition of the distinction between felonies and misdemeanours, section 9 provides for a general rule on alternative verdicts in relation to all indictable offences. In addition, the Minister decided that it was prudent to provide for the alternative verdicts which should be open to a jury on a charge of murder lest there be any doubt arising from the abolition of the distinction between felonies and misdemeanours.
The section provides for a limitation on the extent to which a person found not guilty of murder, which is of course currently a felony, may be found guilty of a lesser charge. There is a clear  need for certainty as to the verdicts open to the jury in murder cases. The section also makes similar special provision for alternative pleas in respect of an indictment for murder to which section 3 of the Criminal Justice Act, 1990, relates, which was formerly referred to as capital murder or an attempt to commit such murder. In addition, the section provides a general rule for alternative verdicts in relation to all other indictable offences.
Section 9 restates the law that a person charged with an indictable offence may be convicted of attempting to commit that offence. In addition, it provides that a person charged with an attempt may be convicted of the attempt even where the person is proven to be guilty of the completed indictable offence. Although this is a restatement of the law where the completed offence is a felony, the section clears up uncertainty on the same legal point in respect of misdemeanours by applying the rule to any offence which is indictable.
Section 10 limits to two years the maximum term of imprisonment to apply in respect of indictable offences where no maximum penalty is provided. A number of obscure and minor statutory misdemeanours prescribe no maximum penalty and, in theory, there is no limit to the term of imprisonment that may be imposed. These offences mostly relate to the making of false statements for the purpose of the particular statute. The section gives statutory effect to the existing rule of practice whereby the maximum fine or term of imprisonment for an attempt to commit an indictable offence should not exceed the corresponding punishment for the completed offence.
Under common law there is no general power to fine in the case of felonies; that power exists only in relation to misdemeanours. Section 10 of the Bill confers a general power on a court to fine an offender convicted on indictment, except in the case of treason and murder where the sentence is fixed by law as defined in section 2. The power to fine a person convicted on indictment will be unlimited, except where there is a statutory limit on the amount of a fine. That power is also subject to any statutory requirement that the offender be dealt with in a particular way, for example, by disqualification.
Sections 11 and 12 of the Bill do not relate to the abolition of the distinction between felonies and misdemeanours but to an area of the law which needs to be updated. Penal servitude, which was a sentence of imprisonment with compulsory labour, was substituted for transportation in the middle of the last century. For many years there has been no distinction in the treatment of prisoners sentenced to penal servitude or imprisonment. Imprisonment with hard labour as a form of punishment has also fallen into disuse. Prison divisions — the placing of prisoners into divisions of varying severity — no longer apply either. It is time the law was cleared of these outmoded categories of imprisonment and that is the main purpose of section 11.
The sentence of whipping is available to the  courts under certain statutes in respect of males but is never used. Whipping of females is prohibited by statute. The European Court of Human Rights has adjudged the practice of birching to be degrading and contrary to the European Convention on Human Rights. Accordingly, section 12 abolishes whipping.
Section 15 enables prosecutions commenced before the coming into effect of the Bill to be dealt with on the basis of the existing law. However, the procedural provisions of the Bill will apply where a person is arraigned after the Bill comes into effect. This will mean, for example, that where an accused is arraigned after the Bill is in force in respect of a felony committed before the Bill commences, all the procedural provisions of the Bill relating to trials for a misdemeanour will apply. Where an indictment has been framed and signed in accordance with the law before the coming into force of the Bill, the accused can only be found guilty of an offence under the previous law. The particular purpose of this provision is to clarify the position in relation to alternative verdicts. Section 15 (4) takes into account the reference in Article 15.13 of the Constitution to the term “felony” in respect of the provision for immunity from arrest of Members of the Oireachtas. In effect, this is a saving provision which saves felonies for the purposes of Article 15.13 of the Constitution, and for that purpose only. Originally, this provision was not in the Bill and it has been included by way of an amendment made in the Dáil.
Section 13, 14 and 16 introduce the Schedules to the Bill which provide for necessary amendments, modifications and repeals which are, in the main, consequential on the abolition of the distinction between felonies and misdemeanours.
Central to the Bill are the powers of arrest which it provides. These provisions restate and clarify the existing law in those areas. The main change is that these powers will relate to a wider range of offences than heretofore by virtue of the abolition of the distinction between felonies and misdemeanours and by the creation of a new category of arrestable offences. We are satisfied that where the Legislature has decided that an offence can be punished by five years imprisonment or by a more serious penalty, then that is an appropriate test to put in place now as the basis for a modern and effective power of arrest. It is essential that we put in place a clear and comprehensive legislative framework to provide the Garda Síochána with the necessary powers of arrest. In relation to these and other matters, I have no doubt that the Bill, when enacted, will provide the Garda with effective and up to date tools in the fight against serious crime while, at the same time, striking a proper balance between the individual citizen's rights and the protection of society from crime.
Mr. Mulcahy: I welcome the Minister of State who has been in the House on a few occasions  since our debate on the Refugee Bill. Perhaps by way of an aside she might say what progress has been made and if that Bill has been enacted. By and large, I welcome this Bill which contains a number of long overdue provisions. I am glad the Minister of State did not trumpet the Bill as a huge contribution to the fight against crime because she will accept that it is a necessary tidying up exercise.
I read with interest Deputy O'Donoghue's Second Stage speech on the Bill. I am delighted to see the warnings he gave about the constitutionality of section 6 will be taken into account by the Government, a topic to which I will return. Yesterday's publication by the Government of the Non-Fatal Offences against the Person Bill, 1997, represents — and this is the only political comment I will make — further copying of pioneering work done by Deputy O'Donoghue and Fianna Fáil.
Mr. Mulcahy: This Government has copied two to four key proposals on criminal reform from the Opposition. In fairness to the Minister of State, she did not make any political points when introducing this Bill.
I welcome the abolition of the distinction between a felony and a misdemeanour which harks back to Victorian times. The difference between a felony and a misdemeanour has been a source of confusion to law students down the years. The answer given was that a felony was a more serious crime than a misdemeanour, but a crime is a crime. Sometimes a minor crime may have more serious consequences for the victim than a major crime would have for somebody else. It is time we abolished this Victorian distinction between a felony and a misdemeanour because they are both crimes. I strongly welcome section 3.
I also welcome section 7 which relates to penalties for assisting offenders. It abolishes the distinction between a felony in the first degree and a felony in the second degree. Returning to the dictum that a crime is a crime, part of the tragedy of the drugs crisis is that many of those who commit these crimes never put their hands on the dirty goods. These people behind the scenes are the manipulators and, in many cases, on conviction they would be considered as having committed a felony in the second degree. I welcome the abolition of this distinction. Section 9 relating to the trial of offences is a necessary tidying up measure which should be supported.
There are, however, sections of the Bill which are not particularly appropriate. Section 4 relates to arrest without warrant and the concept of an arrestable offence. Is there a non-arrestable offence? Why are we drawing a distinction between arrestable and non-arrestable offences? Surely all offences should be arrestable. Perhaps the Minister of State will clarify that.
 Section 6 concerns the entry and search of a premises to effect an arrest. Reading the Dáil debate on the Bill, I was staggered that the Minister for Justice did not immediately agree with what Deputy O'Donoghue said. He rightly highlighted some of the most important judgements on personal liberty and the inviolability of a person's dwelling. He quoted from the judgment of Mr. Justice Walsh in the case of the People v. O'Brien  Irish Reports 142 which stated:
In Article 40 of the Constitution, the State has undertaken to defend and vindicate the inviolability of constitutional rights of the citizen. The defence and vindication of constitutional rights of the citizen is a duty superior to that of trying such citizen for a criminal offence.
While I would like to accept a drafting error was made, it is not good enough that a provision, which is clearly unconstitutional, should have made its way from the drafting section of the Attorney General's Office through other Government offices into this Bill. Was this Bill rushed or was an attempt made to throw together a Bill for the sake of appearances? If not, somebody has made a mistake. It is not good enough that such wording should be included in a Bill.
I wish to voice a query about the abolition of the distinction between penal servitude and hard labour, a point on which I have not made up my mind. My understanding of the distinction is that penal servitude does not permit remission of sentences. Are we saying in this Bill that all sentences are capable of remission? Are we saying that somebody convicted of certain offences may only have to serve a small proportion of their sentence? That would be the wrong signal to give to the public. I hope it is not part of the Labour Party's soft approach to prisons and sentencing——
Mr. Mulcahy: With regard to early releases, last week a female prisoner who was sentenced to 12 months imprisonment was released from Mountjoy Prison after serving only 48 hours of her sentence. The excuse for her release was shortage of prison space. That is a scandal which causes great concern to the public. It brings the administration of justice into disrepute because the public loses confidence in the system. Judges and prosecutors also become disheartened. It is unacceptable. I hope the Minister of State will make a clear statement that the abolition of the  distinction between penal servitude and hard labour will not make it easier to release convicted prisoners early. I would appreciate such clarification.
I oppose violence and corporal punishment. However, I wish to pose a philosophical question about the possible administration of some form of physical punishment by the State for criminal offences. Last night I watched the “ABC News” from the United States. Over a period of ten years in the state of Ohio, the education budget has decreased while the prison budget has increased. There is a direct correlation between the decrease in one budget and the increase in the other. If we are to imprison everybody who commits an offence for a considerable period of time, will that put a huge economic burden on the State? The prison population in the United States and in Britain is extremely high and growing, and prisons are a booming industry.
Everybody would like to eradicate the causes of crime and criminality by better employment, education, social services and so forth. However, there appears to be an inevitable increase in the level of crime. Nobody likes violence, but can a case be made for it? Has the fact that a great deal of money could be saved by the State administering some form of moderate corporal punishment been adequately explored? If members of the public are asked if they are in favour of some form of corporal punishment, many say yes. I am not saying I am in favour of it and I hope I do not say that through cowardice. However, from the economic point of view, if corporal punishment is not the answer we need to look at another form of punishment to ensure the prison population does not continue to increase. We might not be able to afford the large prison population to which the increase in criminality in western democracies gives rise.
It is politically correct to say one wishes to abolish crime. I am not suggesting that people should be whipped but, if we are to be serious in addressing the problem of criminality, we should look at other punishment options. Did the Department carry out studies on whether corporal punishment has worked in other jurisdictions?
Corporal punishment is widely used in Singapore and many people have said that, as a result, people in Singapore are safer in the streets. The Minister of State might find that amusing but Members of this side of the House take the law and order debate seriously.
Mr. Mulcahy: Many people are concerned about their safety on the streets. They are concerned about burglaries, syringe attacks and petty crime. Is prison the answer for every one of these crimes? I hope the Minister of State will answer that question in a mature fashion. If she offers the glib answer that prison is the answer for every such crime, it will be a mistake. Other solutions must be found. I do not suggest that corporal punishment is necessarily another solution, but other methods of punishment must be found because the prisons simply cannot accommodate all the prisoners.
From the public's point of view, the key issue in the criminal justice debate is the effect the crime wave has on their personal lives. Violence against people on streets, burglaries, syringe attacks, tourist crime — about 3,500 attacks were carried out on tourists last year — and the revolving door syndrome in prisons are issues that concern the public. This Bill will only have a marginal influence on the level of crime and the administration of justice. It is not the answer to problems in that area. Some of its provisions are welcome. However, has the Bill been properly thought out and researched? If it has, why were the apparent drafting errors not corrected earlier?
Mr. Neville: I welcome the Bill. It provides for the abolition of the distinction between felonies and misdemeanours. The distinction is out of date and does not conform with developments in criminal offences. The classification of offences makes felonies a graver class and misdemeanours a lesser class of offence. Such distinctions have no relevance in the 1990s because of changes which have occurred since these two terms were coined. It creates unnecessary complications and anomalies in the law as it applies to modern circumstances.
The Bill provides that, in general, the law and practice with regard to misdemeanours before the commencement of the Bill will apply to all offences. The effect of the Bill will be to facilitate the modernisation of many Acts and the simplification of the law. The original distinction dates from pre-Independence times. England and Wales abolished the distinction about 30 years ago and it has taken us that time to realise that the distinction should be abolished. The application of the criminal law must be relevant and must deal with modern crime.
At present there is a power of arrest without warrant in common law in respect of felonies. This does not apply to misdemeanours, even though there has been a blurring of the distinction and interpretation in the area. As a result it is necessary to obtain an arrest warrant in respect  of a number of serious offences which are classified as misdemeanours, such as fraudulent conversion, obtaining property by false pretences and some sexual offences. The Minister of State outlined the stupidity of the current situation with the examples she gave.
This Bill will abolish all distinctions between felonies and misdemeanours and introduce a new category of arrestable offences which will cater for most felonies and the more serious misdemeanours. Offences that are punishable by imprisonment of terms of five years or more will be arrestable offences for the purposes of the Bill before the House. Since most felonies are punishable for a minimum of five years, there will effectively be no change in this regard.
The Bill will extend the power of arrest without warrant to some of the more serious misdemeanours interpreted under existing law. It is important that when a serious offence is suspected the powers of arrest would be without warrant. This is outlined in the Criminal Justice Act, 1994. We must bring the law up to date because the law must be relevant to the times in which we live and be responsive to changes in the nature of crime. Criminal activity has changed dramatically over the past ten years, never mind the 30 years since the law was changed in Britain. White collar fraud has come into its own, so to speak, and we have dealt with several items of legislation to tackle it.
However, some basic legal provisions, such as the powers of arrest, have not been updated. Therefore, we welcome this clarification and modernisation of the law. As the Minister of State indicated, this Bill is a significant advance in the law. I welcome the introduction of the category of arrestable offences which will include most felonies and the more serious misdemeanours. It will make the law more relevant.
Section 4 deals with the powers of arrest exercisable by private citizens and the Garda. At present, when a private citizen exercises a power of arrest it is essential that a felony can be proved to have occurred, otherwise the private citizen is liable for civil action. I welcome the retention of this provision. Difficulties have arisen in this regard with security personnel who may be over-zealous. It is important that they have a power of arrest when they know that an arrestable offence has occurred. However, there must also be an inbuilt safeguard for the citizen to ensure this power is not abused. Substantive changes in the Bill, such as the power of arrest without warrant, will now extend to a number of serious offences classified as misdemeanours and bring them into the category open to a citizen's arrest. It is important that store detectives and security personnel should have such a power but it is also important that the power is curbed and they adopt a responsible approach to it.
 Section 6 concerns Garda powers to enter and search premises, to effect an arrest for an arrestable offence or on foot of an order for committal. The general power to enter a dwelling such as that provided for the purpose of affecting an arrest for an arrestable offence without a warrant may be found inconsistent with Article 40.5 of the Constitution which provides special protection against forcible entry into dwellings. I welcome the Minister's re-examination of the matter.
I vehemently disagree with Senator Mulcahy who considers it is wrong or shoddy for Members of the Oireachtas to question the constitutionality or effectiveness of a Government proposal. It is our role to examine proposals and to question the Minister. It is a responsible Minister who listens to the Members of the Oireachtas, reconsiders the matter in question and responds. Rather than criticise a Minister for doing so we should welcome it. Too often in the past Ministers have had closed minds on legislation brought before the House and it was put through regardless of the views of Members. The Minister's response on this matter is to her credit rather than, as Senator Mulcahy would have it, a shoddy approach to the development of the Bill.
I welcome the changes in sections 11 and 12, where penal servitude, which was a sentence of imprisonment without compulsory labour, has been abolished. For decades there has been no distinction, in effect, in the treatment of prisoners sentenced to penal servitude or imprisonment. Imprisonment with hard labour as a form of punishment has long since fallen into disuse. The Minister is dealing with reality and responding in accordance with the views of the European Court of Human Rights with regard to flogging and its abolition. This is a response to present day attitudes towards corporal punishment.
I question Senator Mulcahy's proposal that the level of time off for good behaviour for prisoners should be reduced from 25 per cent to 15 per cent. There was a debate in the House on this matter and it was proposed that it should be increased to 33.3 per cent, which is the level in many European countries. When a prisoner decides to reform and behaves, complies with prison regulations and is seen to be involved in prison activities which would lead to them becoming positive members of society when released, the legal system should respond accordingly. At present it responds by giving a 25 per cent reduction in sentence to such prisoners.
Senator Mulcahy's view that it should be reduced to 15 per cent should be clearly examined before being adopted. I fully agree that someone who has committed a serious offence, is not prepared to reform, does not comply with prison rules, does not get involved in prison activities and is generally unco-operative, should not receive a remission of their sentence. However, we should have a mechanism to respond to prisoners who are prepared to behave themselves, mend their ways and move towards becoming  positive citizens who will, on release, contribute to the good of society. That must be everyone's objective.
I welcome the Minister of State's commitment and her statement that legislative measures in the criminal law area are at an advanced stage of preparation. They include the bail Bill which deals with an issue on which the citizens have spoken. The people have comprehensively stated they want a change in these laws so the onus is on the Government to put that into effect. I welcome the fact that this Bill is now at an advanced stage as is the Licensing (Drugs) Bill which will deal with the problems of drugs sold in dance halls and public houses. This Bill was hailed as an important measure when the Minister announced it almost 18 months ago. People are anxious that it should be put in place as quickly as possible to allow the Garda to act against peddlers of drugs, especially Ecstasy, in such establishments.
The Fraud Offences Bill, which will simplify and update our complex laws against fraud, is also at an advanced stage and we look forward to its publication. Advances have been made in this area and the Minister of State has mentioned the Bills she expects to come on stream shortly. We welcome the Bill published yesterday as a progressive one and we should recognise what the Minister has done in the area of tackling crime. We must ensure the work that has already been commenced will continue and for this we need an increase in the number of measures to reduce crime.
It is gratifying to see that crime outside Dublin has been reduced, but we should examine why it has not also diminished in our capital city. It is generally accepted that one of the main reasons is the need of addicts to steal money to feed their habit. Much work has been done to counter that, not alone in the legal area but also in education and health. Many would say that not enough has been done and while we would all subscribe to that view, a start has been made. The Drug Trafficking Act, 1996, made a substantial impact on trafficking by permitting suspects to be detained for up to seven days as well as placing limits on their right to silence.
The establishment of the Criminal Assets Bureau, which permits the seizure and disposal of property suspected to be the proceeds of crime, has devastated the role of the drug baron. At one stage, many of us felt these people were almost untouchable but we now see that if there is a will to beat them, there is a way.
While the drug barons are being dealt with it is also important to tackle drug peddling at a lower level. This matter must be clearly examined, especially in the capital where crime levels as a result of drug abuse have not been reduced as they have outside Dublin.
Senator Mulcahy dealt at length with the issue of prisons. It is about time it was recognised that one of the biggest prison building programmes in the State is now under way and an additional 800  spaces will come on stream before the end of next year. In 1996, up to 180 extra prison spaces were provided, which was more than had been created in the previous ten years.
We look forward to the Prisons Board which is soon to be established to oversee the country's prisons and examine their management structures. Prison reform, including the availability of education, must also be looked at. Some prisons, including Limerick, have a high level of educational activity and a high participation rate therein. That is not so in all prisons, however, and we must question that. The opportunity for and encouragement and motivation of prisoners to reform is of paramount importance in our prison system.
We must find out why there is such an escalating level of crime. The situation is a difficult one and we have debated it at length in this House. We must not only dwell on how to control crime or how to respond to the criminal; we must also ensure that crime does not occur. If one examines criminal activity and the sections of society from which criminals mostly come, one can see that certain types of crime emanate in deprived areas. If we are to tackle that we must eliminate deprivation. It is a social necessity to do so.
We must treat all our citizens equally but we are not doing so in deprived areas where residents suffer alienation. This results in criminal activity and the State and legislations must accept some of the blame for that. We cannot run away from our responsibilities in that area.
Mr. Quinn: I welcome the Bill as a small but important step on the road to criminal law reform. I am impressed by the Minister's handling of the Bill in the Lower House and her words, particularly regarding the amendments that she intends to take. It is in that spirit that I wish to concentrate on one aspect of the Bill.
While this is an important though small step, putting the right laws in place is only part of what needs to be done with the justice system. Some say it is not even the most important part. Properly administering the law is at least as important. Many believe that the administration of justice is chronically deficient.
I have always been impressed by how the average citizen in the United States seems to be more law abiding, have more respect for the law and have more recognition for misdemeanours than we have. I was in Columbus, Ohio, and we took a wrong turn. I was the navigator, not the driver, and I pointed out the road to Cleveland. It turned out to be wrong road and when I realised this I suggested we do a U-turn. There was plenty of room for a U-turn but the driver went 22 miles out of his way rather than make a U-turn because he said it was against the law. I cannot picture that happening in Ireland. I cannot picture myself sticking as rigidly to that law. I was demoted from navigator to the back seat immediately afterwards.
 Is there anything in the administration of law which plays a part in our lack of respect for it? Many believe we are not administration such as this very well. When discussing legislation such as this we would be failing in our duty if we did not pay attention to what will actually happen to the legislation after it is passed. How will this Bill be managed? I have tried to look at many of the Bills which pass through this House from a management point of view to see what is best practice. No matter what good laws the Minister proposes or we pass, if they are not administered well, we are failing in the major part of the task that faces us. If any part of our public service demands to be well managed it is the justice system. The civil rights of many people depend on it as does the safety and well being of citizens.
However, over the past few years we have seen shocking cases of mismanagement in key areas of the justice system. Last week we saw the consultant's report into the Chief State Solicitor's Office. Earlier we heard of problems with the Office of Public Prosecutions. We all know of the difficulties that arose in the Attorney General's Office two years ago, problems to which this Government owes its existence. Last autumn we had the incredible incident of a judge not being properly informed that he had been taken off the Special Criminal Court. This is not just an absence of best practice but bad management. Good laws and bad management result in bad justice. Our justice system needs a complete management shake up.
There is hardly any point in us crossing the ts and dotting the is as we have been doing with this legislation if the management of justice is not up to the job. It is focusing the energy on the wrong place. I am not suggesting that we do not put energy into that, but we must not focus entirely on that issue and relieve ourselves from focusing on the management of justice.
The four problems I have mentioned are not isolated. They are not exceptions that can be swept under the carpet and forgotten. They are a symptom of a system that has failed to keep step with the times and demands that are placed on it.
Why has this happened? Whenever a problem has arisen it has always been blamed on a lack of resources. We are told that all these organs of State are hopelessly over-burdened and they have been starved of the resources necessary to modernise and to do the job properly. I am sure there is some truth in this because change does cost money. It seems finding money to administer justice is a very low priority in the national pecking order.
I visited Wheatfield prison last year. I was very impressed at how the system works. I had never been to a prison before. It is an example of how money has been invested and the system works. This is a contrast to what happens in Mountjoy. When we spoke in the House last year about the conditions in Mountjoy it was clear that spending money on prisons is not a priority. The same seems to apply to the entire justice system. Why  is this so? Crime is a very hot issue in every part of the country as every politician knows. It has been very high on most people's agenda for a number of years but despite that, we have systematically under-resourced the whole system of justice. The time has come to make the connection between the two. If we are serious about justice we have to grasp the nettle and resource it properly and that calls for some hard decisions. From what would we take the money? Until now we have been passing over the justice system in the queue for spending. We cannot continue to do that.
The system has become so under-resourced because people did not know what was going on. We all assumed that our justice system was up to the job. We concentrated on things like putting more gardaí on the streets and equipping them properly. There have been steps taken in that direction. We all assumed it was a question of modernising and adding to our laws. Hence the Bill now under discussion. What we did not recognise was the problem with the system itself. Now we know. We have had enough straws in the wind to thatch a big house.
As we talk about legislation we must ask ourselves if we are creating an illusion of progress by passing such legislation. I welcome the Bill and the Minister's preparedness to accept amendments. I look forward to a healthy debate. Of course we need better law but we also need to manage that law much better than we are doing now.
Ms Gallagher: I welcome the Minister of State, Deputy Burton, to the House. While I apreciate the concerns raised by Senator Quinn regarding the administration of justice, we have to remember that the primary responsibility of Seanad Éireann and Dáil Éireann is legislation. As legislators we are bound to introduce laws and it is a matter for Government to deal with administration of those laws.
I share the Senator's concerns about where priorities should lie. The administration of justice was neglected in the past. The courts were bogged down to a great extent. However, legislation was needed to allow the Government appoint 23 new judges. We have appointed civilians to assist gardaí and legislation has released more gardaí onto the streets rather than sitting in courtrooms all day. These are means by which the system and administration of justice have been made more effective and efficient. That has been achieved through a combination of factors in terms of legislation passed in both Houses in recent years and the Government's commitment to tackling crime. I think we are going in the right direction though there is still much to be done.
In relation to the Bill, I have raised a personal concern in this House on a previous occasion. As the Labour Party spokesperson on Justice, I can only say that we have been bombarded with legislation in the areas of crime and justice. I am concerned that, with hindsight, we may come across  some anomalies in this new legislation and see some gaps in it. Where it may have been more appropriate to deal with certain areas in a previous BIll, these areas are now being stuck at the end of the subsequent Bill which deals with justice generally. I am concerned that the Department of Justice would exercise some role in reviewing all that has been done in recent years in this area. I think it is important that we do not adopt a piecemeal approach to what is an important area of law.
We are under pressure in as much as the legislation is certainly needed. Dealing with crime and drugs, as this Government has done, required huge changes in our legal system and in our criminal law and I welcome the implementation of these changes. It is also important that the Department of Justice assures us that legislation is being monitored in terms of knowing what has already been dealt with and provided for and also what remains to be done. That is an important role which must be taken on board.
The Criminal Law Bill is essentially a legal Bill and therefore for some speakers to talk generally about crime and the administration of justice in our society is to wander from the point. This Bill deals with legal terms and legal aspects of the current criminal justice system in Ireland. While the Bill may not be a priority in terms of law, it is nonetheless important. Ireland does not seem to have considered it to be a priority when it has taken so long to bring this legislation before the Houses of the Oireachtas; I was not even born when the legislation was changed in England and now some 30 years later, we are getting around to dealing with it.
Our laws should not be archaic; we should not simply update our laws for the sake of being seen to be a modern society but we should be improving our laws. Our laws should be recognisable and understandable to the society for which they are provided. If one was to ask somebody on the street what is the difference between a felony and a misdemeanour, I suspect they would not know. It is important to abolish these old Victorian distinctions.
Having said that, the Bill, by nature, is messy in some ways. When distinctions, such as that between a felony and a misdemeanour, are abolished the fallout must be dealt with and the fallout is that crimes, such as the commission of a felony, become obsolete and are tackled in another way through this legislation. In that sense we have achieved an improvement of our laws, not a mere updating of them.
I welcome the abolition of corporal punishment and penal servitude; the days of the chain gang are over, and rightly so. I do not think slave labour, under any guise, should be condoned. However, the notion of community service is a valuable one. Senator Mulcahy seemed to be on the brink of going for the “hang 'em and flog 'em” approach, though he seemed afraid to say exactly that; at the same time he tried to raise the point that there should be other ways of punishing  our criminals. There are two aspects to that: first, the law should, where possible, seek to compensate the victim of crime to a greater extent and, second, it would be useful in terms of benefit to society and in terms of rehabilitating the prisoner to use community service more. I think community service is worthy of consideration.
I think it was Senator Mulcahy who said that remission should be reduced to a blanket 15 per cent of a sentence. I do not agree with that; I believe one has to provide incentives for rehabilitation. The option should always be there. Where it is not covered by this Bill, the issue could be dealt with on another occasion.
In relation to the rescission of the Whipping Act of 1812 and the Garrotting Act of 1863, it is time they were taken off our Statute Book. No such legislation has a place in modern society and, in any event, they have not been used. We should recognise that fact.
Section 5 provides the power of arrest to a garda where he or she may not actually hold the warrant or the order for committal at a particular time even though they may know that such a warrant or order exists. It is pointless that our gardaí would be hampered in carrying out their duties because of that technicality. Section 5 is very practical and allows a necessary job to be done. This is in line with previous provisions in similar legislation. It is important that the legislation provides a specific requirement, relating to the production of a warrant as soon as possible in the interests of justice and fairness.
Section 6 purports to clarify existing common law rules in relation to the right of entry in order to effect an arrest. I noted that this point caused furore in the Dáil debate in terms of whether it was constitutional. It seems that if the Labour Party were to raise such an argument we would be accused of being soft on crime whereas it was acceptable and legitimate for Fianna Fáil to make the same argument. I think the provision is balanced and while I wonder whether a citizen would bother to effect a right of arrest, I accept that the right is available to security guards and such people whose job it is to do so. In practical terms, while a citizen has a right to arrest, it does not necessarily follow that there is a right to detain or question somebody. I assume that in those circumstances, the gardaí must be called in and, in turn, effect an arrest under which detention and questioning can take place. I would welcome clarification on that point.
Under the present law, the right to arrest depended on whether the suspect could be classified as a principal in the first degree, a principal in the second degree, an accessory before the fact or an accessory after the fact. These are confusing terms and I think they are obsolete. I welcome the abolition of those distinctions in section 7 of the Bill. The abolition of those distinctions allows the law to treat all the accused persons involved in a crime on an equal footing and subsequently let the justice system and the evidence before the  court decide on their crime, that is, whether they are guilty of aiding, abetting or carrying out the offence.
One of the main provisions of the Bill is in section 2 which provides for power of arrest without a warrant. This existed under common law in respect of felonies but did not exist in respect of misdemeanours. I welcome the new category of arrestable offences. It had been criticised in the Dáil debate in so far as it would be difficult to define what constituted an arrestable offence. At least the section does away with the nonsense of a felony being something like stealing a few pence — which as a felony was deemed serious — while a sexual crime might be classified as a misdemeanour. It is more sensible that, whatever term be given to it, it classifies serious offences, which involve a term of more than five years or more severe penalties, previously known as felonies or serious misdemeanours, as arrestable offences. That is a practical change.
The new offence created in section 7 is that of impending the apprehension or prosecution of a person who has committed an arrestable offence. It replaces the common law offence of being an accessory after the fact. This is not just disposing of obsolete terms but is dealing with the repercussions of that disposal. It is a novel and good idea to introduce a graduated scale of penalties depending on the seriousness of the principal offence.
Section 8 deals with the misprision of a felony, which is another aspect of the fallout from abolishing the old distinction and is replaced by the new offence of concealing an arrestable offence. If nothing else, it is clearer in meaning. It makes it a crime to accept a bribe not to disclose relevant information which would assist in the prosecution or conviction of an offender; I welcome that as a good move.
Section 9 deals with the general rule on alternative verdicts relating to all indictable offences. That is again consequential on the abolition of the old distinction and makes certain the choices of verdicts available and applicable in a case of murder and capital murder. I am not sure if the legislation is as clear as it could be in this area, but it is welcome.
Section 10 limits to two years the maximum term of imprisonment applicable in respect of indictable offences. For some reason, these were not given a maximum penalty before, so it is sensible to introduce this change rather than allowing the possibility of someone being arrested for a relatively minor offence with no maximum penalty.
The power to impose fines as part of a conviction is a good idea. It raises the point of a recent case the facts of which I am not quite sure. A huge fine or debt was due and the defendant seems to have been given the option to serve one month in prison or repay the fine or debt. Being the sensible man he was, he naturally opted to spend a lovely month in the new prison in  Castlerea and I am sure he enjoyed himself. He thus managed to write off a debt or fine of £20,000 to £30,000. If I were given the same choice, I would gladly take a holiday in Castlerea Prison rather than pay that amount of money.
That is a serious aspect of justice doing wrong because the person to whom the money was owed was not recompensed by someone spending one month in Castlerea Prison. Furthermore, the wrongdoer was not punished. Until that balance is achieved, we must question the administration of justice. It is crucial that victims be recompensed as far as possible and the perpetrator or wrongdoer punished. I do not agree that incarceration is the only way someone can be punished. The aspect of community service to which I referred earlier is much more useful. We must examine in the long-term whether prisons are rehabilitating anyone and serving society well. Be that as it may, the wrongdoer should be punished.
There seems to have been a miscarriage of justice in this case and I would rather that type of anomaly was dealt with than other more minor aspects of the law. However, whether that could have been dealt with in this Bill is another matter. It often puzzles me why certain matters are covered under a criminal law Bill and others under a criminal justice Bill. We must assess what we are doing with legislation in this area. It is complicated, of necessity, but it is worth doing right.
Mr. Farrell: We have had huge volumes of legislation recently, yet the criminals take holidays abroad and live in the lap of luxury; there are more criminals and problems on our streets and we are doing nothing about them. Despite all the brains in Government, criminals with plenty of money seem to find loopholes in the law. The best known criminal in the country, who once lived in luxury, is challenging the constitutionality of the Criminal Assets Bureau Act, 1996, and may possibly find loopholes in it. Why do we not send such Bills to the Supreme Court to ensure their constitutionality? A loophole may  be found in the Criminal Assets Bureau Act which could result in the decision being appealed to the European Court of Human Rights thus delaying the work of the bureau for two to three years. We were assured that every loophole in the Act had been covered but I am afraid the bureau will now achieve very little.
The volume of legislation we are passing is just a smokescreen. It does not solve problems or jail criminals. I could not agree more with Senator Gallagher when she said that someone can opt for a few weeks in a palatial residence — a jail in modern terminology — rather than pay their fine or debt to compensate their victims.
A poor woman was recently prosecuted for non-payment of either a telephone bill or a television licence, but she was sentenced to either two weeks in jail or to pay a certain amount of money. She opted for jail because she could not pay the fine. She was released within two hours. It was a waste of Garda time to bring that woman from her home to Mountjoy Prison. A taxi also had to be paid to bring her home. This happens all the time. When will it stop? That woman was no threat to society, but what crimes may have been committed while three or four gardaí in a squad car brought her to Mountjoy? How much time was wasted in attempting to collect the money due?
The management of the system is deplorable. Anyone in business who gives credit and realises there is not a hope of getting it back writes it off as a bad debt. They do not waste time and money going after it. Everyone in this country receives a pay packet whether it is social welfare or wages. There should be a system whereby fines could be stopped from a person's pay. Even if that would take two years, it should be done. Valuable Garda time should not be wasted. The amount of time spent on the paperwork and documentation involved is ridiculous. We should be serious about passing laws and ensure they are constitution proof.
There is a question about the constitutionality of this Bill which Senator Gallagher said Fianna Fáil fumed about in the other House. If Senator Gallagher read all of Deputy O'Donoghue's contribution, she would have seen he went on to state on 16 May 1996 as reported at Col.1283, vol. 465:
The Constitution is clear: “The dwelling of every citizen is inviolable and shall not be forcibly entered, save in accordance with law”. The manner in which the courts have interpreted that article of the Constitution is also clear. Mr. Justice Walsh in The People v. O'Brien  Irish Reports 142 at page 170 stated:
In article 40 of the Constitution, the State has undertaken to defend and vindicate the inviolability of the constitutional rights of the citizen. The defence and vindication of the constitutional rights of the citizen is a duty superior to that of trying such a citizen for a criminal offence.
 That is clear yet the Minister seems to be going ahead with legislation which is obviously unconstitutional. When will this be sorted out? It is dangerous to say that any house can be raided without a warrant if a garda says so. A warrant will be issued. It is surely a simple job to put a house under surveillance. It does not take long to bring a warrant from a Superintendent's office in any district to where it is needed. With modern technology, someone can make a telephone call to say they suspect something is happening in a house wherever it may be. When the warrant is delivered, the house can be kept under surveillance. People's rights cannot be violated. We have seen many miscarriages of justice in Britain. Do we want to be in a similar position here? We have a Constitution and either we uphold it or we do not.
Criminals are riding on the crest of a wave. The Minister mentioned the different bills which are being formulated, the Bail Bill, the Licensing (Drugs) Bill, the Fraud Offences Bill, etc. We have listened to this for the last few years but what are we doing about it? Bail legislation is a joke. Everybody knows people on bail are committing offences. Why was the Bail Bill not a priority? Why was it not introduced a long time ago?
Fianna Fáil introduced a Bill which was not accepted by the Government. That is its prerogative. Why not amend the Bill where it thinks it is weak or dilute it where it thinks it may be too strong? I cannot see why the Government cannot introduce it. Many people are committing crime while on bail and in many cases they are minor crimes. My business was broken into. It is a shock to see everything scattered all over the place and windows smashed. Yet when those who commit these crimes are caught, they are released on bail. They then commit more crime because they know that when they come before the court their sentences will run concurrently, not consecutively. They know they can do as much damage as they like because they will be penalised only for the first crime. We are not doing anything about this.
Many people are in jail because they committed minor offences. Such people should not be in jail. We waste time dragging them to Mountjoy Prison, giving them a taxi fare to the railway station and a train ticket back home. They are at home by the time the taximan employed to drive them is at home.
Mr. Farrell: Tell the Governor of Mountjoy Prison that he should not send prisoners home. Tell him to find places for them. Tell him he is a liar and that he has spaces in his prison which he is not using.
Mr. Farrell: Crime is out of hand. Senator Neville must be living in an ivory tower. If he is not afraid, he must be fortified with henchmen guarding him when he walks around. People are afraid to walk on the main streets of their cities.
Mr. Farrell: I am surprised at the Senator talking about 167 prison places. There are no places. The criminals are being let out. If we introduce a system whereby fines are stopped from wages and if we stop sending petty criminals to prison, we might make spaces available for criminals.
There is no point passing laws if they are not implemented. The only people who seem to be tracked down for every minor offence are motorists. They cannot look around in their car without being charged but criminals can do as they wish. We must get tough, introduce bail laws immediately and not place this matter on the long finger. However, we are afraid to do so.
Mr. Farrell: Yes. She stated that such laws would be introduced. However, like Christmas, they will arrive at some time in the future. Surely the bail laws should have been introduced a year ago. There have been calls for their introduction. When Senator Neville sat on this side of the House he referred to the need to introduce such laws.
Is anything being done to extradite drug barons who are now living abroad? Are they being brought back to face the law? It took the British justice system and the British Government to bring one of our prime suspects before the courts and put him behind bars. The Irish justice system did not imprison him. He was released. However, the British justice system did not release him and he is now where he should be. If our laws are being implemented, why are things of this nature allowed to happen? Why are the Irish authorities not seeking extradition warrants to bring such people back to face trial?
I recently read an article about a criminal in Mountjoy Prison who was supplied with a computer. He was running his business from within the prison. Drugs are freely available in Mountjoy Prison. Some people have stated that if that were not the case the prison system would become a time-bomb waiting to explode. In other words, criminals are being kept quiet and a blind eye is being turned to the availability of drugs in our prisons. Is that the way it should be? On previous  occasions I stated that young offenders who are drug addicts should be placed in special units to receive treatment rather than being treated as criminals. Drug barons and criminals should be put behind bars. However, we are imprisoning drug addicts who know no better and are trying to feed their habits. It appears to be easier for them to obtain drugs while in prison than it is when they are at liberty.
Young criminals have stated that they were drug free on entering Mountjoy Prison but by the time they were released they had become addicts. Is this the correct way to operate the justice system or rid the country of crime? If it is, God help Ireland. That is not the way the system should operate. We will only come to grips with the crime problem when laws that are 100 per cent constitutional are introduced, criminals are imprisoned and people are held answerable before the courts for each crime they commit rather than taking five or six of them together.
Mr. Farrell: I appeal to the Minister of State to come to grips with crime which is the most serious problem we have at present. It is causing much hardship and will eventually affect tourism, commercial and industrial interests. Unless bail laws are introduced and implemented which are 100 per cent constitutional, we will not come to grips with the problem of crime.
Mr. O'Toole: The most positive statement made during the debate is that criminals in Mountjoy Prison are using computers and running businesses. That is the most encouraging remark about the prison system I have heard for many years because such action represents true rehabilitation. We can look forward to those involved in these activities becoming useful members of society when they are released from prison. The chances of their becoming recidivists or habitual offenders will be substantially reduced.
There are many ways to approach this issue. I could refer to the fact that my house has been burgled between 11 and 13 times and respond on an emotional level. It would be easy to do so and  perhaps it is important to have such an experience, although I do not know whether it has made me any wiser in terms of how to deal with law and order but it has made me wiser about dealing with insurance companies. I no longer search for stolen property at the local market because the last thing I want to do is to get back some soiled, used property and explain that to an insurance company.
The problems experienced by victims of crime can be dealt with in many ways. However, I will concentrate on two issues concerning the general philosophical basis behind our approach to law and order and crime. Law and order is an election issue and is targeted by political parties as an area where they can buy, sell or gain votes. That is a tragedy because it plays on and exploits people's inner fears. There is no doubt that some people lock themselves into their homes at 5 p.m. or 6 p.m. and are afraid to leave the following day. As public representatives, we have a duty to rectify that.
Any discussion of this issue which states that these problems began when the Government of the day came to power and will be rectified when a new Government assumes office, is similar to a debate on unemployment — if it improves we take the credit and if it becomes worse we blame outside forces. The reality is that crime is on the increase. Additional constraints are being put in place but, nonetheless, crime is becoming a way of life. There is a huge underclass in Irish society which occupies the twilight world of criminality and these people live on the wrong side of the law. Ten years ago such people could be seen drinking a pint at the end of the day but now they holiday abroad on five or six occasions during the year. The people at the top, the crime bosses, tend to make a great deal of money.
Tighter, stricter and more focused legislation is required. In that context, I welcome the Bill because it recognises the loopholes that drive people to distraction and which need to be closed. Rightly or wrongly, the Bill attempts to do that. However, despite my being a victim of crime and the fact that people are afraid to walk down O'Connell Street during the day, where is the balance between law and order on one hand, and freedom on the other? Everyone responds to a situation where a person sentenced to a prison term in Mountjoy Prison is released and sent home in a taxi having been given a meal. Such stories make great headlines for the tabloids and people are rightly outraged. It must have a devastating effect on the victims of crime to see such people being released. This is similar to people who are victims of crimes against the person seeing the perpetrator walk free. This problem must be addressed.
The purpose of the law is for society to respond in a processed and organised way to crimes or actions against the common good. These are dealt with in various ways, including imprisonment. The main aspect of imprisonment is that it is a  deprivation of liberty. Prisoners can have multi-channel television, computers and a library in their cell and the best of food but every evening the cell doors bang shut and they do not get out until the following morning. That is what imprisonment is about and it is not discussed when dealing with the prison system. I take as much responsibility as others on this. What should happen in prison? The question of rehabilitation is crucially important to try and prepare people to go back into society and be of use there.
People who talk about prisoner's rights forget one element. A prisoner does not have and cannot have the same rights as an ordinary citizen. That must be part of imprisonment. It is punishment, not revenge, where society metes out punishment in a disciplined and ordered way. All discussions on imprisonment should include that element. There are others also such as the constraints of living in prison. Prisoner's rights are not the same as those of a normal individual. The Constitution allows a person to be deprived of liberty, notwithstanding habeus corpus. Nonetheless, incarcerating somebody through the due process of law is a deprivation of rights. Other rights are impinged upon while that person is imprisoned and punished.
What bothers me about the system of law and imprisonment is that too much of our prison population comes from well known city areas in particular. We must ask ourselves a question, even after everything that Senator Farrell has said about the prison system — and he is right — and everything that has been said in the House about weaknesses in the law. Is there something wrong with society when, having seen a person's address and because they come from the middle of a sprawling housing estate on the edge of a large conurbation, we can say there is a 50 per cent chance that person will finish up unemployed, a 30 per cent chance he will become involved in drugs and a 20 per cent chance that he will end up in prison? There is something wrong when we can make such accurate predictions, or we can carry out a survey among the prison population on where they come from. It has been done and a preponderance of them come from certain areas and housing estates and from a certain class.
Why is that? It is because we have failed them. I speak as an educationalist. They come through schools where I and the people I represent have taught, but we have failed them because they do not continue from education to qualification to employment and thus to being useful members of society. They are born in disadvantaged areas, attend under resourced schools and are disadvantaged because of that. They do not make it at post primary level and finally become more of a cost on the State by being held in prison or addiction clinics. There must be a better way of spending our money.
There is no excuse for public representatives looking for media attention justifying vicious  crimes on the basis that the person has a disadvantaged background. They are not two sides of the same coin. We can ask why is it happening in disadvantaged areas and try to do something about it. We cannot let that argument go to the point of saying that all they did was knock down three people on a road after stealing a BMW, robbing a house, getting high on drugs, driving at 150 miles per hour. They killed two people but they had nothing else to do on their housing estate; they were disadvantaged.
There is no place in society for that type of soft centred liberalism without direction. That is not the society we want. We need to look at it from both points of view. People who break the law have to be punished by the law. On the other hand we have to look at cause and effect and results and examine where we can break this vicious circle of disadvantage, poverty, drug addiction, imprisonment, reconviction followed by imprisonment etc. There are a number of ways to break it — the education system, the prison system and the legal system, which includes this Bill.
Eighteen months ago in this House, I made an impassioned appeal on the Bill dealing with the 1909 incest law where I pointed out the problems being created by the distinction between felony and misdemeanour. I put down an amendment to have them regarded as one rather than the other and it was accepted by the Minister. It is an important distinction which allows the more efficient implementation of the law.
For the purpose of arresting a person for an arrestable offence or on foot of an order of committal a member of the Garda Síochána may enter (if need be, by use of reasonable force) and search any place (including a dwelling) where that person is or where the member, with reasonable cause, suspects that person to be.
A warrant for the arrest of a person or an order of committal may be executed by a member of the Garda Síochána notwithstanding that it is not in the member's possession at the time; but the warrant or order shall be shown to him or her as soon as practicable.
Does the warrant have to be available for execution? The fact that it is not in the garda's possession does not worry us, but is this ex post facto? Can the garda execute an arrest without the warrant being in existence? Where is the warrant? That is crucial. Under section 6 the garda can use reasonable force with reasonable cause. How stringent a test is that? It may be correct. I have never understood, not being a legal person, the meaning of the word “reasonable” as it is applied in legislation — the concepts of a reasonable person and reasonable force.
I also welcome section 8, which makes it an offence for witnesses to accept bribes or payments not to give evidence. It will be impossible to implement that. It would be more difficult to prove that somebody had received money not to give evidence than it would be to prove conspiracy. It is a brown paper bag scenario, and it would not take much to work out where that came from. I welcome it as a noble aspiration, but it will not work. It is also an offence — I do not know if it is a felony or a misdemeanour in past legislation — not to report a crime. How does that relate to section 8? I do not object to this section because people who keep a crime under wraps should be charged with an offence. Is it not already an offence if someone who is aware of a crime does not report it? Perhaps the Minister could clarify that issue.
I do not understand many technical parts of this Bill. However, I welcome it because it will tighten up this area and increase the confidence of people who feel the law is becoming too weak. I hope it works and I look forward to hearing the Minister's reply.
I welcome the fact that a number of Bills have been tided up in this area. This afternoon I glanced through the Third Schedule —“Enactments Repealed”. It lists the Sunday Observance Act, 1695, which is over 300 years ago. Perhaps I agree with that Act because I enjoy the Jewish Sabbath when I am in Israel. There is a great deal to be said for limiting commercial operations on at least one day a week, not necessarily for religious reasons but for spiritual and practical reasons of people's health. The Criminal Evidence Act, 1710, is also listed, as is the Riot Act, 1787. It would be a pity if the Riot Act was not read again. The Vagrancy Act, 1824, the Infant Felons Act, 1840, and the South Australia Act, 1842, which appears to suggest the days when the Micawbers were transported to Australia, are also listed. This may be a good housekeeping exercise.
Having just escaped from the groves of academia, to the great relief of both it and myself, I wonder if it would be a good idea to suggest that the law departments of our universities attempt to examine all our statute law with a view to codifying it. Napoleon did this with great effect in France under the Le Code Napoleon. Would it not be refreshing to give the law departments of universities this task for their students? It would be exciting for students at both undergraduate and postgraduate levels to feel they had a real input into making recommendations and getting  rid of all this dross and dry and dead wood. It would also represent a useful and practical interface — to use an ugly Americanism— between the world of academia, scholarship, study, practical politics and law. I do not know if that suggestion could be taken on board, but it is time we attempted to codify the law.
I take up the gauntlet flung down by Senator O'Toole when he requested information about other legislation in which it is a crime not to report knowledge of a criminal offence. I am sure the Minister and her adviser will correct me if I am wrong, but Senator O'Toole was probably referring to misprision of felony. I have always taken an interest in this because it operated, for example, with particular relevance to the 1861 and 1885 Acts. When speaking out against the operation of the Offences Against the Person Act, 1861, and the Labouchére Amendment, I made the argument that the Labouchére Amendment, which had already been characterised as a blackmailer's charter to criminalise the knowledge of the commission in private of certain specified sexual acts, put all types of categories of people in peril, although they were rarely attacked under the provisions of this law. For example, I do not know of any situation where a priest who came into possession of information about the criminal activities of a penitent was prosecuted, but I believe that possibility technically existed.
There is also the question of medical confidentiality. Supposing someone visited a psychiatrist and in the course of therapy confessed to a crime which constituted a felony, would it present a moral dilemma for the psychiatrist? It would be his responsibility to report it under misprision of felony. Before the 1861 and 1885 Acts were repealed, there would have been a considerable moral dilemma for someone in the caring profession who came into possession of information about a victimless crime. Yet they would have been liable for a severe penalty for not referring knowledge of that crime to the prosecuting authorities.
It is wise that misprision of felony has gone. However, I am not sure that what replaces it is entirely satisfactory. Section 8 states: “Where a person has committed an arrestable offence, any other person who, knowing or believing that the offence of some other arrestable offence has been committed and that he or she has information which might be of material assistance in securing the prosecution or conviction of an offender for it, accepts or agrees to accept ...... shall be guilty of an offence.....”. I wonder if that could be construed as a professional person who received a fee for professional advice.
I also wonder about other sections of this Bill. Section 7 deals with penalties for assisting offenders. Senator O'Toole thought this was a good idea. I am usually persuaded by his argument and rhetoric, but I am not so sure on this occasion. I recall a situation in the inner city some years ago where a disturbed and possibly vicious criminal took refuge in his mother's apartment.  This woman was of a certain age and she was not in good health. Was that woman guilty of an offence? Should she have been sent to prison? It could be construed that she was aiding and abetting by concealing the presence of her relative. I am sure this could also be extended to spouses. There are unusual psychological pressures on a husband or wife not to disclose the presence or the acts of the other spouse. That may be regrettable but it is sometimes psychologically understandable. I am unsure about this and it needs to be scrutinised. For that reason I cannot accord it the wholehearted welcome given by Senator O'Toole.
I am concerned about sections 5 and 6. Senator O'Toole was correct in questioning the existence of a warrant and whether a warrant could be described as ex post facto. However, if one suspects the police or the Judiciary of a conspiracy and being capable of colluding in the production of a warrant, this legislation will not prevent that happening.
Section 6 invites the Garda to go down a dangerous road. We have not had much of this type of behaviour by the Garda but we have seen it in the UK and the US. Many Senators have seen television programmes in which front doors were smashed in, property was damaged beyond repair, children were terrorised and elderly people were pulled from their beds on suspicion of possession of drugs. At the end of the day nothing was found; the complaint turned out to be mistaken or malicious. What provision is there for compensation in the Bill? I do not see any. I think the Minister is shaking her head. Would she not agree that there should be a provision for compensation where false information is laid by a spiteful neighbour and this kind of damage is done to property? I know of situations not far from O'Connell Street where this has happened. I have been recognised as a amicus curiae in a court in Dublin, cross-examined by the Garda and succeeded in getting charges dismissed. This behaviour can and does exist and I have witnessed it.
One only has to consider instances in Belfast where British soldiers, looking for guns, burst into peoples' houses, ripped up kitchen floors, smashed cement, pulled out wardrobes and terrorised people. This had a very negative impact in the area. Much of the crime addressed by this Bill is concentrated in certain areas and there is a possibility of the alienation of the Garda if a similar practice becomes commonplace. It must be exercised with caution, otherwise we will further the ghettoisation of this city.
I am puzzled by the phrase “arrestable offences”. I taught English in Trinity College but when I see “arrestable offences” I wonder what is on the other side? Are there non-arrestable offences which are not covered by this legislation but for which there remains a power of arrest? We are in cloud cuckoo land in which we have arrestable offences and non-arrestable offences  for which one can be arrested. Is this the case? I feel as if I have been eating magic mushrooms. I hasten to add that I have never done so because it is an indictable offence and I could have my front door smashed in.
Mr. Norris: We are moving into a police state. I get a hallucinatory feeling when I discover that there are arrestable offences and non-arrestable offences for which one can be arrested. Perhaps this is a question of language but I would be miffed if I was arrested for a non-arrestable offence. It would be more than a linguistic discomfort.
It would be useful if we knew what these offences were. The old felony offence was any offence which carried a penalty of more than three years. This Bill will mean any offence with a penalty of up to five years. Despite the tidying up, these offences could include trivialities such as allowing one's dog to foul the path. There are anomalies, and once one introduces this concept into law there is a moral responsibility to scrutinise the offences which are covered so that trivial cases can be excluded.
I applaud any legislation which reduces crime. However, crime statistics are reducing. Senator O'Toole is incorrect when he expresses horror at the increase in crime. This has been repeatedly stated by that well known authority. Mr. Vincent Browne, on the electric wireless, so it must be true. He has given facts and figures to support this. However, there is a popular misconception that crime rates are rising. This is partly due to the sensational reporting of certain crimes. It is also because the category of crime which appears to be on the increase is very unpleasant.
I remember when it was sensational if there was a murder in Dublin. Now such cases are on the back page along with the latest football results. A murder has to be spectacularly grisly if it is to make the front page. We are right to be worried about this and it relates to two elements which were not in evidence when I was younger. First, the advent of hard drugs in the inner city and the creation of enormous wealth and a sense of territory on the part of criminals which they defend in a manner which would make Chicago gangsters pale. Second, the conditioning of people to accept violence by the maligned presence of people committed to groups such as the Provisional IRA.
I would welcome this Bill if it seriously addressed crime. However, I am not convinced it has or will greatly reduce the incidence of crime by its operation and I am concerned at how some sections will operate.
Minister of State at the Department of Justice (Ms Burton): I thank Senators for their contributions. The question of arrestable offences was raised. It is defined so as to cover serious offences, that is, those for which a person is liable  to at least five years imprisonment. This will cover most existing felonies and more serious misdemeanours. The need for a category of arrestable offences is that the abolition of the distinction between felonies and misdemeanours makes redundant the common law power of arrest without warrant in respect of felonies. To replace this, section 4 will allow arrest without warrant in respect of arrestable offences. The selection of five years imprisonment is an appropriate benchmark for identifying offences which are sufficiently serious to justify a power of arrest without warrant. In effect, after the enactment of the Bill these will be the categories of offences, arrestable and other offences, which attract a maximum prison sentence of less than five years. We are distinguishing between two different categories, that is, those which attract penalties over five years and those which attract penalties less than five years.
A number of Senators referred to section 6. While it could be argued that on balance the existing section 6 strikes the right balance between the protection of society from crime and individual rights under the Constitution, as I said before, the Minister for Justice has decided to amend the section to take account of the concerns raised today and during the debate in the Dáil. Section 11 relates to the abolition of penal servitude. Senator Mulcahy was perhaps engaging in what happens close to an election, political coat trailing and weasel words, in that he was concerned about the abolition of whipping but he did not have the courage to say if he was in favour of it. I listened to one of his colleagues in the Dáil last week list the publications available in Mountjoy. The Deputy was very exercised that Beano and The Dandy were on the list and wanted to deprive prisoners, most of whom we would hope would learn to read and write during their time in prison. He was not so down on Gardener's World or Carpentry Today, but Beano and The Dandy offended him.
As regards queries on whipping and the elimination of categories of physical punishment, it is a mark of progress in our society that we should consign such penalties to the dustbin. We may look at countries such as Iran, and Senator Mulcahy mentioned Singapore as being a particularly admirable place. While I admire Singapore's economic performance as a little island like Ireland, such punishment does not have a place in Irish penal reform. I was the victim of a burglary last week. After being the victim of a crime, we all give vent to feelings of rage and anger, which is understandable, but in the cold light of day most would be glad whipping has been abolished and would agree it had little to offer.
Senator Mulcahy suggested the Labour Party was soft on crime. However, we sought a particular mechanism to which the Minister for Justice agreed and which was introduced by my colleague, the Minister for Finance, Deputy Quinn. While prison offers a severe punishment — Senator O'Toole spoke about the loss of liberty — it is my view, and I come from the centre of Dublin, that the loss of money, involving as it does the loss of status to criminals, is probably as severe a penalty as imprisonment. The introduction of the Criminal Assets Bureau Bill therefore was one of the most fundamental reforms introduced to the Dáil or Seanad in the fight against crime.
Members will have read about those alleged to be connected to the dreadful murder of Veronica Guerin boasting of their crimes and taking exotic holidays. Law abiding people who live close to them, perhaps in disadvantaged parts of Dublin, must tolerate the offence of seeing these people, their associates, girlfriends and wives flaunt their wealth. The introduction of the Criminal Assets Bureau will do more to strike fear into the hearts of criminals and potential criminals than any amount of whipping by Senator Mulcahy or the physical punishment wing of Fianna Fáil. The IRA has tried that in the North and we have rightly condemned it. Senator Mulcahy should not be too tempted by seemingly quick fix solutions from other societies.
On the administration of justice and points made by Senator Quinn, I agree with what he said. We inherited a justice system on Independence which we have used since then without making too many dramatic changes. While many elements of our society have changed, the cirminal justice system has not changed to take account of organised crime and drug crimes, particularly the fabulous amounts of money which may be made from such crime. There is a recognition by all parties and a determination by this Government to overhaul the justice system and to bring it up to date to reflect the difficulties we face. Senator Neville was right when he said crime is decreasing, particularly rural crime. Crime in the west decreased by about 11 per cent last year. However, the level of crime in Dublin remains high. Nonetheless, the viciousness of some crimes committed and the degree of insecurity felt by people, particularly the old and women, must be addressed.
I share Senator Quinn's convictions that the criminal justice system should be reformed. The process of reform is underway and we are currently working on proposals on the court service. Recently, a strategic management initiative was undertaken in the Department of Justice. A fundamental review of the Garda Síochána is taking place on how it allocates its time, how its members are trained and on the funding it receives. An expert group is working on the prisons.
I would point out to Senator Quinn that while Wheatfield Prison is the most state of the art prison in the service, serious questions must be asked. Although it does not suffer from the disadvantages faced by Mountjoy or overcrowding, it also has drugs. It has modern facilities to prevent the entry of drugs and considerable educational  facilities and resources for inmates, but it is also developing a drug problem. We must ask serious questions about the rehabilitative structures in place in prison and the offer made to prisoners in relation to rehabilitation from drugs. That is not amenable to a legislative solution.
Senator Neville spoke about the work of the Minister for Justice and it must be acknowledged that she has attempted to cover a comprehensive range of reforms within her Department. I share his views about rehabilitation. It is good to see the distinction between hard labour, penal servitude and imprisonment coming to an end. However, a legitimate query can be raised in this regard. If prisoners can be given encouragement and inducements to work, some of the fruits of that work or the money made from it should go to the victims of crime for the sake of the well-being of society.
In looking at the circle of reforms that have been introduced, one area remains to be dealt with, and that is how the system deals with victims. Many victims are left bereft and feeling that the justice system has not addressed their needs. This is particularly true in the case of crimes against women. Although a woman who has been assaulted or is the victim of rape might bravely go to court, she often feels afterwards that the court ordeal was equivalent to the ordeal of the crime itself. No recompense is ever made by sexual offenders, except on an indivual basis, to those against whom they have offended. That issue must also be examined.
Senator O'Toole and Senator Norris asked about a warrant under section 5. The warrant for the arrest must be in force. They also asked about the phrase “reasonable cause” in section 6. That term is well defined in case law relating to various powers, including the power of arrest. Section 8 abolishes the offence of not reporting a felony. It is replaced by the more narrow offence of accepting a bribe to conceal an offence. Time will tell whether it will be possible to prosecute that offence and how many such offences will come to light. Senator O'Toole and Senator Norris expressed concern about that section. Prosecutions under that section must be referred first to the Director of Public Prosecutions. That is a good safeguard against the over-zealous use of the new offence.
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